231 



Article 5, paras. 4 and 5, is another important element of effective enforcement 

 of the Convention. Although these provisions are now bracketed, we believe 

 that they should be made part of the final Convention. The strictest language 

 possible "is required. Thus, in paragraph 4, reference should be made, as is sug- 

 gested in Footnote 18, to denial of access to a ship which "does not comply with" 

 the provisions of the Regulations rather than to a ship which "is not constructed 

 in accordance with" the provisions of the Regulations. Further, denial of access 

 should be mandatory rather than merely permissive, and we believe that if a 

 Contracting State is "satisfied" that a ship is not in compliance, it need not 

 "establish" such non-compliance. Finally, permission to leave the port or off- 

 shore facility under paragraph 5 should be conditioned on the voyage's not 

 presenting "a significant threat of harm to the marine environment" rather 

 than "an unreasonable threat of harm to the marine environment." 



(iii) Detection of Offenses. — To insure effective enforcement, unnecessary 

 obstacles should not be posed to inspection. Article 6, para. 2. as presently 

 drafted, would only permit ships to be inspected in "loading ports." We agree 

 with the suggestion in Footnote 21 that the language be expanded so as to 

 cover ships "in ports and offshore terminals of any Contracting State." Further, 

 addition of the language suggested in Footnote 22 to paragraph 2 of Article 6, 

 which would require a report to be made to the appropriate authority if it ap- 

 pears that a discharge has been made or that there is a danger of discharge, 

 will strengthen the enforcement web. 



In addition, the investigatory provision now contained in Article 6, para. 5, 

 should be made mandatory. This provision, combined with the proposals con- 

 tained in Footnote 9 and our proposal to extend investigation beyond loading 

 ports, will, if all are adopted, do much to insure that no violation of the Con- 

 vention will go undetected or unprosecuted. 



(iv) Report in ff. — Reporting is an integral part of the enforcement mechanism. 

 Any efforts to limit the circumstances under which reports should be made 

 or to provide for permissive reporting should be opposed by the United States 

 delegation. In particular, we disagree vdth the suggestion made by some dele- 

 gations, see Footnote 32, that subparagraph 6(b) should be deleted. Moreover, 

 we believe that the suggestions made in Footnote 33, that reporting should be 

 made with regard to casualties which involve threats of discharge, is ap- 

 propriate and should be included in the final Convention. Because of the impor- 

 tance of the reporting requirement, we would additionally recommend that the 

 Convention include a sanction, perhaps triggered by a compliance test related 

 to observation of discharges, to enforce the reporting procedure. The requirement 

 of fullest possible reporting will serve to encourage compliance with the Con- 

 vention and will also provide information regarding the frequency and volume 

 of spills, which, in itself, should prove valuable for future efforts to control ship- 

 generated pollution. 



(v) Casualty Investigation. — Article 12, para. 1, also an element of the enforce- 

 ment mechanism, would be strengthened by the addition of the proposal contained 

 in Footnote 49 (ii) which would enable a state to investigate casualties causing 

 pollution which occur in areas generally recognized as international waters but 

 which may affect the waters of the investigating state. Here again, by increasing 

 the number of states which may investigate casualties (or violations of the 

 Convention), the possibility of comprehensive enforcement is enhanced. 



(vi) Eindentiary Standard to Aid in Enforcement of Discharfje Criteria. — An 

 appropriate evidentiary standard which would aid in the enforcement of the dis- 

 charge standards is a final element in the enforcement mechanism. As Footnote 

 21 to Annex I indicates, there is unanimous agreement that such a provision is 

 appropriate, at least as regards oil pollution. The four alternatives presented 

 in Annex I for oil, however, very vastly in quality. Alternative (i) merely pro- 

 vides that evidence of "visible traces . . . shall be cause for investigation. . . .". 

 Alternative (ii) even makes adoption of this evidentiary standard optional. 

 And Alternative (iii) would require that it be "proven" that oil has been dis- 

 charged. Only Alternative (iv) makes evidence of visible traces in and of 

 itself "sufficient to establish a violation of this Regulation," unless rebutted by 

 evidence to the contrary. Obviously Alternative (iv) is the strongest and best of 

 the present formulations, for it places the burden of disproving an apparent 

 violation upon the alleged violator. If anything, we believe that even this provi- 

 sion might be strengthened, by deleting the requirement that the visible traces be 

 found "in the vicinity of the ship or its wake. . . .". Oil slicks can be carried over 

 substantial distances and in many directions by ocean currents. If it is known 



26-282—74 16 



